The EPA's Clean Power Plan 'Victory' Isn't The Slam Dunk It Seems To Be
- Jun 12, 2015 9:42 pm GMTJul 7, 2018 9:21 pm GMT
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The Environmental Protection Agency is probably feeling pretty good about itself after its big climate “win” in federal court on Tuesday. A three-judge, conservative-leaning panel of the D.C. Circuit Court of Appeals dismissed various state and industry challenges to the legality of the EPA’s proposed Clean Power Plan, a rule that would monumentally restructure the nation’s electric system to reduce carbon dioxide emissions.
On its face, the court’s decision in Murray Energy Corporation v. EPA looks like an unequivocal slam dunk for the EPA: The court threw out all of the challenges as premature. And while the court did not address the fundamental question of whether or not the EPA has the power to adopt its Clean Power Plan, a loss for the EPA at this early stage of the rulemaking would have been catastrophic.
But the truth–which I suspect the EPA knows but is keeping to itself–is that the challengers likely got what they wanted with this case back on March 18. That’s the date the court released the names of the three judges who presided over the case.
Out of 17 judges that sit on the court, nine were appointed by a Democrat president. Yet the three-judge panel that was randomly selected for the Murray case included three Republican appointees: Justices Kavanaugh, Griffith and Henderson. The probability of that occurring is about 8%.
At this point, you’re probably asking yourself why the makeup of the Murray panel matters. The reason is simple: According to the D.C. Circuit’s Handbook of Practice and Internal Procedures, this three-judge panel also gets to decide whether–in “the interest of judicial economy”–it should be assigned as the panel of judges for future related cases, such as the upcoming challenges to the final Clean Power Plan. In other words, this same conservative-leaning panel should have the power to choose whether or not it wants to hear the actual challenges to the EPA’s final Clean Power Plan, which will be filed in droves shortly after the EPA finalizes it in August.
Because the briefing and oral argument in the Murray case involved substantive legal questions that the judges had to read and consider, the Murray panel would be completely justified in deciding that judicial economy is best served by staying with the case. And two of the three judges on the panel, Kavanaugh and Griffith, have regularly been thorns in the EPA’s side. In 2012, the two stayed and then ultimately overturned the EPA’s Cross-State Air Pollution Rule, and that same year, Judge Kavanaugh filed a dissent in a separate case arguing that greenhouse gases are not air pollutants.
The petitioners may have been premature in bringing their lawsuit (or as the court put it, “champing at the bit to challenge EPA’s anticipated rule”). They may have been legally wrong to do so (since, after all, they were asking the court to review the legality of a proposed rule for the first time ever).
But in the end, the petitioners may have unwittingly gotten something out of this case that’s almost as good as a win: a sympathetic panel to rule on the legality of the soon-to-be-issued final Clean Power Plan.